AUSTIN & ORS v. SEPLAT PETROLEUM DEV. CO. (NIG) LTD & ORS (2022)

AUSTIN & ORS v. SEPLAT PETROLEUM DEV. CO. (NIG) LTD & ORS

(2022)LCN/16318(CA)

In the Court of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/AS/325/2017

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

1. MR. ARIEJA AUSTIN 2. MR. DAVID ARIEJA 3. MR. FRANCIS GAGECHE 4. PA. DAVID GAGECHE (For Themselves And On Behalf Of The Otonyatsere Community In Sapele L.G.A Delta State.) APPELANT(S)

And

1. SEPLAT PETROLEUM DEV. CO. (NIG) LTD 2. CHIEF JOSEPH ONOMOR 3. CHIEF ONORIODE TEMIAGIN (For Themselves And As Representatives Of The Sapele-Okpe Community.) RESPONDENT(S)

RATIO

WAYS OF PROVING TITLE OF OWNERSHIP TO LAND

The law is trite that in a claim for declaration of title, the onus is on the claimant, to establish his entitlement to the declaration sought by cogent and credible evidence. He must do so on the strength of his own case and not on the weakness of the defendant’s case.

FACTORS TO BE PROVED BY A PLANTIFF RELYING ON TRADITIONAL HISTORY IN A CLAIM FOR DECLARATION OF TITLE TO LAND
The rule in KOJO v BONSIE is only applicable when the traditional histories proffered by the parties in a case are cogent and plausible but in conflict whereas in this case, the traditional history presented by the Appellants is incomplete and the rule is inapplicable; See; OBIORA v DURU (1994) 8 NWLR PT 365 PG 631 at 650.
The rule in KOJO v BONSIE could not be applied when the Appellants were unable to establish title which seems to be the anchor of acts of numerous possessions; See; AWODI v AJAGBE (2015) 3 NWLR (PT. 1447) 578 SC; where the Court held thus;
‘‘In a claim for title to land based on traditional history, the plaintiff has to plead and prove each of the following;
(1) The person who founded the land and exercised acts of possession. (2) How the land was found, and (3) The persons on whom the title to the land devolved from its founder to the plaintiff. The pleading of the devolution as well as the evidence in support must be reliable and credible or plausible otherwise the claim for title will fail. The plaintiff must rely on his pleading, he cannot plead traditional history and abandon his pleading to rely on acts of ownership over a long period of time.’’
per NGWUTA, JSC (P. 48, PARAS. B – F). PER OBASEKI-ADEJUMO, J.C.A.

THE POSITION OF LAW WHEN A PORTION OF A LAND ACQUIRED IS EXCISED

In SOBANDE v IGBOEKWE (Supra) the Court held that when a portion of the land acquired is excised and returned, the ownership of the land vests on the person/persons in whose favour the excision was made. Thus, a new root of title is created by virtue of the grant and no issue of reversionary interest arises as what is created is a new root of title. SEE;ELEMORO & ANOR V ABIODUN (2014) LPELR-23195 (CA);GBADAMOSI & ORS V AKINLOYE & ORS 2013 LPELR-20937(SC);YUSUF V OYETUNDE & ORS(1998) 12 NWLR (PT 579) 485 AT 493; ALHAJI AKIBU ALARAPE ADAMS BAKARE V MRS FLORENCE FOLASHADE SUSAN (2018) LPELR -45339 (CA) In FRUIT TROPIC INDUSTRIES LTD v MR YAKUBU AMODU & ORS (2020) LPELR-51675 (CA); The Court PER IKYEGH JCA, held following AKINBOYE & ANOR V ADEKO (2011) 6 NWLR (PT1244) 415 AT 442 thus;
“Once there is valid compulsory acquisition of land, the title of the former owner becomes extinguished by the reason of the acquisition.” PER OBASEKI-ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice Delta State, Sapele Judicial Division per Hon. Justice R. D Harriman (Mrs) delivered on the 12th day of May, 2017. At the lower Court, the 1st, 2nd & 3rd Respondents were the Defendants while the Appellants as the Claimants instituted the suit by a writ of summon and statement of claim wherein they claimed the following reliefs against the 1st Respondent:
1. A declaration that the claimants are the person entitled upon application to the statutory right of occupancy over all that expanse of land which is bounded on the Eastern side by Otonyatsere creek, on the Western side by Mayuku creek, on the Northern side by the River Ethiope and on the Southern side by Esiwe/Ugbodede creek, which expanse of land is particularly described and delineated in the survey plan No. ITA/DT/50/2014 filed along with the statement of claim.
2. An order of perpetual injunction restraining the defendants, their agents, servants and/or privies and/or proxies and any other person or persons through whom the defendants operate from further trespassing on the claimants’ land described above and which location, dimension and situate, described and delineated in the survey plan No. ITA/DT/50/2014 filed along with the statement of claim.
3. General damages of five hundred million naira ONLY (N500,000,000), against the 1st defendant as damages for the act of trespass by the 1st defendant when on/or about the year 2010 the 1st defendant began to operate on claimants’ land without claimants’ consent or approval.
4. Any other equitable relief as the Honourable Court may deem reasonable in the circumstance.

FACTS
A brevity of the facts of this case is that the suit was initially instituted by the Appellants against only the 1st Respondent at the High Court of Justice, Sapele, Delta State in which they sought declaration of title, perpetual injunction and damages in respect of an expanse of land covering an area approximately 372 acres lying, situate and/or known as Otonyatsere enclave in Sapele Local Government Area of Delta State. Upon becoming aware of the proceedings, the Sapele-Okpe Community represented by the 2nd and 3rd Respondents herein applied to the trial Court to be joined as co-defendants in the case which application was granted by the trial Judge. The parties subsequently exchanged pleadings which were amended by the Appellants and the 1st Respondent only. The case of both parties is predicated on evidence of traditional history. The Appellants’ case is that the land in dispute belonged to their forefathers, OVENVEN, JEMIGUN, IDUH and others who co-founded the land as first settlers a very long time ago. Their case was that they were on the land before the enactment of the Forestry Ordinance and the Order of 1927 made thereat by which their forefathers were granted the right to farm by the Colonial Masters who created a forest reserve on some parts of the land in dispute and that they and their families have continued to live, farm and exercise other right of ownership and possession over the land in dispute till date.

The 1st Respondent is an oil mining and prospecting company registered under the laws of the Federal Republic of Nigeria which acquired the interest of Shell Petroleum Development Company Ltd which company was allegedly put on the land by the 2nd and 3rd Respondents. 1st Respondent’s case is that the 2nd and 3rd Respondents’ community is the rightful owner of the land in dispute having put their predecessor in title on the land years ago. The 2nd and 3rd Respondents’ case on the other hand is that the Appellants’ forefathers were their customary tenants and that they were permitted into the land a long time ago and the Appellants’ forefathers paid tributes to their community. Their case is that Sapele Community includes the land in dispute and the entire Sapele Community was founded by four founding brothers namely- IJIGHARE, OVWIGHODUA, ONOKUTA and ONOJE several centuries ago.

The lower Court entered a reserved judgment in favour of the Respondents and consequently dismissed the Appellants’ case in its entirety.

Dissatisfied with the judgment, the Appellants filed a Notice of Appeal containing sixteen (16) Grounds of Appeal dated 26th May, 2017 and Appellants’ brief of argument filed 8th September, 2017 but deemed 19th May, 2022 and a Reply brief filed on 4th May, 2022 deemed on 19th May, 2022 both briefs were settled by Chief V. E. Otomiewo; Dr. Brown E. Umukoro; N.B. Ozoemena (Miss) of OSHESHERI CHAMBERS, wherein the following issues were distilled for determination;
1. Whether the learned trial Judge was right in applying the doctrine enunciated in the case of KOJO II v BONSIE in the light of evidence of traditional history tendered on both sides. (GROUND 12).
2. Whether the learned trial Judge was right in her assessment of exhibit A (The Survey Plan) and the evidence of CW3 (The Surveyor) when the Respondents did not file a counter-survey plan and no issues were joined on the correctness of the said survey plan. (GROUNDS 7 & 8).
3. Whether the learned trial Judge correctly exercised her primary duty of evaluation and ascription of weight to same in her consideration of exhibits J1-J4 and other evidence of positive and unchallenged possession by the Appellants. (GROUNDS 10 & 13).
4. Whether the learned trial Judge’s failure to properly and judicially consider and/or evaluate the contents of exhibits A, B, C, D, E, G, H, K, L occasioned a miscarriage of justice in the circumstances of this case. (GROUNDS 4, 5, 6 & 9).
5. Whether the learned trial Judge was right when she held that: ‘‘There is no evidence that in the last 10 years preceding the action, a fresh damage was done different from what had been happening in the last 40 years or so” as part of the reasons for dismissing Appellants’ claim. (GROUNDS 2, 3, & 10)

The 1st Respondent’s brief was filed on 20th October, 2020 and deemed 14th February, 2022 and was settled by P.K. Ungbuku, Esq of THOMPSON OKPOKO & PARTNERS wherein he distilled the following issues for determination thus;
1. Whether the learned trial Judge was right when she refused to consider and/or evaluate the contents of exhibits A, B, C, D, E, G, H, J1-J4, K, L & M. (Distilled from Grounds 1, 4, 5, 6, 7, 8, 9 & 13 of the Notice and Grounds of Appeal).
2. Whether the learned trial Judge was right when she held that the defendants had exercised possession over the land in dispute for many years. (Distilled from Ground 10 of the Notice and Grounds of Appeal).
3. Having regard to the circumstances of the case, whether the learned trial Judge applied the rule in KOJO AND BONSIE? (Distilled from Ground 12 of the Notice and Grounds of Appeal).

The 2nd & 3rd Respondents’ brief was settled by L.O. Ogefere, Esq of OGEFERE & CO wherein he distilled the following issues for determination thus;
1. Did the Appellants plead as well as lead sufficient and credible evidence to entitle them to the reliefs sought before the lower Court? (Distilled from Grounds 1, 2, 4, 5, 6, 11, 14, 15 and 16).
2. Was the lower Court wrong to have invoked the rule in KOJO v BONSIE in this case? (Distilled from Ground 12).
3. Did the lower Court fail to consider or properly appraise exhibits A, B, C, D, E, G, H, K, L and J1-J4 in its judgment? (Distilled from Grounds 4, 5, 6 and 9).

APPELLANTS’ ARGUMENT
On issue 1, the Appellants cited the case of ALHAJI FATAI ALANI MATANMI & ORS v VICTORIA DADA & ANOR (2013) 4 SCM 120 at 130 in submitting that the principle enunciated in KOJO II V BONSIE is the most inapplicable in this case having regard to the evidence of traditional history tendered by both sides before the lower Court. The condition for the application of the rule in KOJO II v BONSIE applies where the traditional evidence proffered by parties are inconclusive and are capable of being believed but competing.

That the lower Court did not consider the detailed evidence of traditional history of both sides before coming to the conclusion that the rule in Kojo applies.

Appellants further submitted that a proper consideration of the evidence of traditional history of both sides would reveal that the evidence of the traditional history of the Appellants was conclusive, believable and reliable but that of the 2nd and 3rd Respondents was inconclusive and unbelievable and as such the issues of competing evidence of traditional history would not have arisen for the purpose of the rule.

It is the submission of the Appellants that the law is that a party who relies on traditional history is bound to plead and prove the following facts:
a) Who founded the land
b) How the founder founded the land; and
c) The particulars of the intervening owners through whom he claims; HYACINTH ANYANWU v ROBERT ACHILIKE MBARA (1992) 5 NWLR (PT. 242) PG 386 at 399 PARAS A-B was cited in aid.

Referencing and citing paragraphs 8, 23, 24 and 25 of the Appellants’ 2nd Further Amended Statement of Claim and paragraphs 8 and 9 of the Appellants’ Amended Reply, Counsel submits that the Appellants did not only plead these facts but established them with cogent and credible evidence.

Counsel further submits that this evidence was not shaken by the Respondents. That exhibit L, the order made pursuant to the Ordinance of 1937 also shows that Appellants’ fathers were on the land in dispute even before the arrival of the colonial masters. That this was also admitted by the 2nd and 3rd Respondents in their pleadings though they claimed without proof that they put Appellants’ forefathers on the land in dispute as tenants.

Counsel submits that the trial Court did not consider this evidence before applying the rule in KOJO v BONSIE.

Counsel further submits that the Appellants proved with cogent and satisfactory evidence their traditional history and if these were considered by the lower Court, the Court would have held that Appellants proved their root of title and would have no need to apply the rule in KOJO v BONSIE.

Finally, Counsel submits that the evidence of traditional history of the 2nd and 3rd Respondents is incomplete, inconclusive and grossly unreliable having regards to the established principles of law as to what a party relying on evidence of traditional history must show. That the pleadings of the Respondents do not disclose how the land was founded nor the particulars of the intervening owners through whom the 2nd and 3rd Respondents derived their interest/title in the land nor how they became the owners of the land as no evidence to that effect was led.

Counsel further submits that evidence of traditional history of the 2nd and 3rd Respondents could not have competed with that of the Appellants as to occasion an inability on the part of the lower Court to choose and pick which side to believe.

It is the further submission of the Appellants that the traditional history of the 2nd and 3rd Respondents ought to have been rejected outrightly and that of the Appellants accepted and accorded the legal weight demanded by a proper evaluation same being largely unchallenged and believable.

On issue 2, it is the submission of the Appellants that the attack of the Learned Trial Court on Exhibit A and failure to ascribe probative value to it when issues were not joined on the said document was wrong and adversely occasioned a miscarriage of justice.

The Appellants cited the case of DURU v ONWUMELU (2001) 92 LRCN 3148 at 3161 in submitting that the law is trite that where there is no counter-claim, it is the survey plan of the claimants that determines the boundaries and identity of the land.

That the Respondents did not file a counter-survey plan in this action neither did they object to the tendering of the said plan. The implication is that the Respondents accepted and admitted all the features and boundaries stated in Exhibit A; ADEPOJU v OKE (1999) 3 NWLR (PT. 594) 154; ORODOEGBULAM v ORODOEGBULAM (2014) 1 NWLR (PT. 1387) 80 at 97 were cited in aid.

The law is settled that facts which have been admitted need no further proof; Section 123 of the Evidence Act 2011; ABUBAKAR v ANOBIH & ANOR (2013) LPELR-20856 (CA) was cited in aid.

It is the submission of the Appellants that the observation of the Learned Trial Judge that CW3 dumped Exhibit A and failed to explain it is not correct. That CW3 in paragraphs 3-8 of his Written Deposition on Oath stated the features of the land as represented in Exhibit A.

The Appellants submitted that the entire 200 acres having been reflected in the survey plan with its size, location and a number of other features, the failure to mention Shell Petroleum Development Company Road within the 200 acres does not affect the identity of the land in dispute.

It is the submission of the Appellants that the land to which their community was granted right to farm by the colonial masters has been referred to by different names in the proceedings before the lower Court though all names refer to same piece of land. Some referred to it as Otonyatsere Village (Exhibit B), Otonyatsere Enclave (Exhibits N & M), Otonyatsere Land, Otonyatsere Family Land (Exhibit H), Otonyatsere Community Land (Appellants).

The Appellants submitted that the law is that the fact that a land in dispute is called by different names does not affect the identity of the land; OKIUGBEDI EDJEKPO v IBOYI ITHIBRI OSIA (2007) LPELR-1014 (SC) was cited in aid.

The Appellants submitted that the only survey plan admitted in Evidence to show the identity of the land in dispute is Exhibit A. That an earlier version was erroneously filed and served on the 1st Respondent’s counsel. The Court’s version and version of 2nd and 3rd Respondent and Appellants’ counsel version were the final corrected version which was the same thing that was admitted during trial. When it was discovered that the 1st Respondent’s counsel version was different, he was later served the final version.

The Appellants further submitted that this mistake was promptly corrected and did not occasion any injustice to the 1st Respondent.

It is the submission of the Appellants that the law still remains that mistake of counsel should not be visited on the parties; OGUNBIYI v MUSTAPHA (1996) 4 NWLR (PT. 442) 337; IYALABANI CO. LTD v BANK OF BAROOLA (1995) 4 NWLR (PT.387) 20; BOWAJE v ADEDIWURA (1976) 6 SC 143; INAKOJU v ADELEKE (2009) 4 NWLR (PT. 1025) 423 at 620 were cited in aid.

The Appellants submitted that the standard of proof required of the Appellants in the circumstance is that which is on balance of probability and not beyond reasonable doubt; OWIE v IGHIWI (2005) 3 MJSC 82; OYEFESO v COKER (1999) 1 NWLR (PT. 588) 654 were cited in aid.

The Appellants further submitted that this requirement was met by the Appellants having regards to Exhibit A, evidence of CW3 and the overall testimony of the Appellants in this case on the identity of the land in dispute.

It is the submission of the Appellants that the failure of the trial Court to ascribe probative value to the testimony of CW3 and Exhibit A which remained unshaken during cross-examination occasioned serious miscarriage of justice to the case of the Appellants.

That the supposed survey plan containing the surveyor’s error or mistake was not tendered as exhibit before the Court.

Finally, the Appellants submitted that it is not the duty of the trial Judge to sit down in chambers and be picking holes in the case of a party when such has not been made an issue by the parties before her.

On issue 3, it is the submission of the Appellants that assuming without conceding that the rule in KOJO v BONSIE applies, then the lower Court was also wrong when it failed to consider the evidence of recent acts of possession of the Appellants including Exhibit J1-J4 and dismissed the claim of the Appellants on the ground that the Respondents had exercised possession for many years.

Counsel submits that the recent acts of the Appellants on the land in dispute are numerous and unequivocal.

That 2nd and 3rd Respondents’ community has no other activity on the land in dispute apart from the presence of the 1st Respondent in some part of the land in dispute.

Referencing and citing paragraphs 31-33 of the Appellants’ 2nd Further Amended Statement of Claim, Counsel submits that the Appellants’ community members reside and farm on the land, and have several tenants on the land and have sold land to several persons.

It is the submission of the Appellants that Exhibit B, G and H which the lower Court failed to properly consider and attach weight, attests clearly to the fact that the Appellants were and are still on the land. That in the above three documents referred to, there is no evidence suggestive of recent acts of the Respondents in the land in dispute.

The Appellants submitted that there is cogent evidence that before the arrival of the colonial masters on the land in dispute, their community members have already been on the land and they were well acknowledged in Exhibit L.

That before the 1st Respondent was let into the land, Appellants’ community members had been on the land.

The Appellants further submitted that the Respondents could not have been in possession of the land in dispute for many years in the face of the evidence before the Court.

That the 2nd and 3rd Respondents could not link the people they claimed founded the land in dispute to themselves or to any member of the Sapele community.

It is the submission of the Appellants that the Respondents could not point to any tree, farmland, pond, house, etc belonging to members of Sapele community in the land in dispute except to say that they put the 1st Respondent on the land. That the Appellants have shown more numerous and recent acts of possession on the land in dispute dating from the founding of the land by forefathers of the Appellants.

Appellants cited the case of FABUNMI v AGBE (1985) 1 NWLR (PT. 2) 299 and SHOSHAI GAMBO v ZINDUL TURDAM (1993) 6 NWLR (PT. 310) 500 @ 511 in submitting that where evidence shows that a party is in possession of disputed land, the onus is on the other party to show that he has a better title and unless that onus is discharged, the party on whom the onus is cannot defeat the other party.

That the lower Court cited and quoted the case of ASHIRU v OLUKOYA (2006) 11 NWLR (PT. 990) 1 and was of the view that receipt of sale or conveyance of land like Exhibit J1-J4 are of little value when the root of title has been disproved.

It is the submission of the Appellants that this proposition of law is alien and the authority of ASHIRU v OLUKOYA does not support such position. That this is quite different from the case at hand, as in the instant case, the Appellants herein relied on traditional evidence as their root of title and went further to show proof of some of the numerous transactions made by them to third parties in the land in dispute.

The Appellants submitted that this is not the same as when grantors title is in issue as in the case of ASHIRU v OLUKOYA and holding that Exhibit J1-J4 are of little value rather than holding that they show acts of possession has occasioned a miscarriage of justice to the case of the Appellants.

Finally, the Appellants submitted that even if the Rule in KOJO v BONSIE is applicable, the Appellants’ traditional history is more believable as they have shown more and numerous acts in recent time.

On issue 4, it is the submission of the Appellants that the Learned Trial Judge failed to properly evaluate and attach probative value to Exhibits A, B, C, D, E, G, H, J1-J4, K, L, and M and that has occasioned serious miscarriage of justice to the case of the Appellants.

Appellants further submitted that Exhibits A, B, C, D, E, G, H, K, L, and M support the case of the Appellants that they have been exercising the right of ownership over the land in dispute for a very long time before the Respondents broke into the land.

Counsel submits that it is not in doubt that the claim of the Appellants was fought in a representative capacity, that is, the Appellants represented the entire Otonyatsere land and there is no evidence of contest from any camp or group within Otonyatsere as to the capacity or the authority of the Appellants to so represent the entire Otonyatsere community. That the Counsel on the other side did not also make this an issue.

Counsel further submits that the lower Court was in error and was on a voyage of its own in allowing the fact that the document refers to other camps to affect the weight of the document.

Counsel cited the case of MOZIE & ORS v MBAMALU & ORS (2006) LPELR-1922 (SC) in submitting that having shown that the Appellants represented the entire Otonyatsere community, it was not necessary to list in the suit all persons referred to in the document or living in Otonyatsere community in the suit.

Counsel submits that a proper evaluation of Exhibit L and the facts leading to the document would reveal that Exhibit L was meant to support the claim of the Appellants that they have been on the land before the colonial masters acquired some part as forest reserve and that their forefathers and not the Respondents’ were the ones met on the land. That Exhibit L admitting Appellants’ fathers to the right to farm was understandable as that is the highest right that can be vested on the Appellants’ forefathers as at that time after the land has been acquired as forest reserve.

Counsel further submits that Exhibit K and L were not properly evaluated when the lower Court failed to recognize the names of the fathers of the Appellants to whom the right to farm was admitted in the document but acknowledged the name of Ayomano in Exhibit K to whom no interest was vested in that document but who obviously on the face of the document signed for the Native Authority.

Finally, Counsel urged the Court to re-evaluate Exhibits B, C, D, E, G, H, K, L, and M and hold that the Learned Trial Judge failed to properly evaluate the said Exhibits and that such failure was fatal to the case of the Appellants and has led to perversity and/or miscarriage of justice.

On issue 5, it is the submission of the Appellants that even with the intervention of the 2nd and 3rd Respondents as parties in the action on the ground that they put 1st Respondent on the land, the acts of the 1st Respondent amounted to continuing trespass when it came into the land in 2010; NNPC v ZARIA (2014) LPELR-22362 (CA) PP. 54-55 PARAS. F-E was cited in aid.

That it cannot be correct for the lower Court to hold that no fresh activity has been carried out on the land in the past forty years.

The Appellants submitted that the continuous reference of the Court to how long the Respondents have been on the land as basis of denying the Appellants’ claim to title amounts to erecting the defence of laches and acquiescence suo moto by the Court when same was not pleaded and proved.

That the Respondents raised the defence of Limitation Law or statute-barred and same was resolved in the favour of the Appellants. The Respondents never raised the defence of laches and acquiescence and never argued same but yet the lower Court severally referred to the Appellants as though they slept on their right.

The Appellants further submitted that the defence of laches and acquiescence which the lower Court tactically erected against the Appellants cannot stand when same was not pleaded and proved; NIGERIAN RAILWAY CORPORATION v ODEMUYIWA (1974) 1 SC 9; ADESANYA v OTUEWU (1993) 1 NWLR (PT. 270) 414; FINNIH v IMADE (1992) LPELR-1277 (SC) were cited in aid.

It is the submission of the Appellants that the trial Court erred in holding that the Respondents were the ones in possession without considering the acts of ownership and possession adduced by the Appellants.
In conclusion, Counsel urged the Court to do justice in this appeal.

1ST RESPONDENT’S ARGUMENTS
Citing the case of IDAKWO v NIGERIAN ARMY (2004) 2 NWLR (PT. 857) 249, Counsel submits in issue 1 that the Learned Trial Judge correctly evaluated the evidence before her and came to the right decision in the case.

Counsel submits that the evidence tendered by the Appellants at the trial did not meet Appellants’ duty to discharge the burden of proof as the evidence relied on was not credible.

That Exhibit A tendered by the Appellants at the trial Court was held to be admissible and relevant but not credible enough for the Court to rely on because it did not reflect the Shell Petroleum Development Company Road as described in Exhibit M (Delta State Gazette of I996); the Surveyor, CW3 did not establish the nexus between Exhibit M and A; and there was a clear lacuna in the testimony of CW3 as it relates to Exhibit A.

Counsel further submits that the proof of identity of a piece of land in dispute is of utmost importance if any success is to be attained in any land suit.

That a plaintiff seeking for declaration of title to land has a cardinal duty to show with certainty, the area of land claimed as failure to do so, amounts to failure to discharge the burden of proof and the case is liable to be dismissed; BARUWA v OGUNSOLA 4 WACA 159; ELIAS v OMOBARE (1982) 5 S.C. 25; AWERE v LASOJU (1975) NMLR 100; and SANGOSANYA v SALAWU (1975) NMLR 27 were cited in aid.

Citing the case of OYEFESO v COKER (1999) 1 NWLR (PT. 588) 654 CA, Counsel submits that the purpose of a survey plan in a land dispute is to show graphically the morphology of an area in dispute, its extent and size.

That where a plaintiff desires to draw up or cause to be drawn up, a survey plan showing the land in dispute, such a plan must show clearly the dimensions of the land, boundaries and other salient features; ARABE v ASANLU (1980) 5-7 S.C. 78; AYINLA v ADISA (1992) 7 NWLR (PT. 255) 566 were cited in aid.

It is the submission of the 1st Respondent that it is trite law that a trial Court has two duties in respect of the evidence led by the parties in a trial. The first is to perceive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the context of the surrounding circumstances, and this is evaluation.

The 1st Respondent further submits that the evidence led by Appellants at the lower Court was not coherent and was not in line with their pleadings. That it is not correct for the Appellants to say that the trial Court failed to consider or evaluate Exhibits B, C, D, E, G & H. These exhibits were admitted in evidence and accordingly marked as Exhibits.

That Exhibit B was tendered to show that Otonyatsere is an autonomous Community rather than show ownership to the land in dispute. Appellants went out of track when they tried to establish Otonyatsere Community as an autonomous community rather than showing title to the said land as shown in their claim.

That Appellants having be laboured the trial Court, referred to the land in dispute by different and several names in Exhibits C, D, E, G & H. The trial Court was mindful of the weight to be attached to these exhibits knowing full well that the document speaks for itself.

That Exhibit J1-J4 was of no value and did not establish title to land as admitted by CW4 under cross-examination.

Counsel cited the cases of ONOVO v MBA (2015) ALL FWLR (PT 765) 298 at 323 PARA F-G and AKINLOYE v EYIOLA (1968) NMLR 92 in submitting that the trial Court rightly evaluated the evidence before it, such that the Court of Appeal should not interfere with its findings.

Counsel further submits that once a claimant fails to prove the foundation of his title to land by traditional history as pleaded, he cannot turn around to rely on acts of ownership and possession to prove his title to the land; OYADARE v KEJI (2005) 7 NWLR (PT. 925) 571 at 584-585 PARA G-H; AWODI v AJAGBE (2015) 3 NWLR (PT. 1447) 578 SC and STODIE VENTURES LTD v ALAMIEYESEIGHA (2016) 4 NWLR (PT. 1502) 271 at 288 PARA F-G were cited in aid.

It is the submission of the 1st Respondent that the trial Judge was meticulous in the appraisal and evaluation of the evidence before her and therefore came to the correct and right decision in the case.

On issue 2, it is the submission of the 1st Respondent that the law remains that acts of long possession and enjoyment of land may be prima facie evidence of ownership of the particular piece of land with respect to acts being done; ONOVO v MBA (2015) ALL FWLR (PT. 765) 298 at 329 PARA E-F was cited in aid.

The 1st Respondent submits that the evidence of CW4 under cross-examination further corroborated the evidence of CW1 and CW2 that Shell has been there for over 40 years and urge the Court to resolve the above formulated issue in favour of the 1st Respondent.

On issue 3, it is the submission of the 1st Respondent that the rule in KOJO v BONSIE simply states that where there is a conflict of traditional history, the best way is to test the traditional history by reference to facts in recent years as established by evidence; GBEMISOLA v BOLARINWA (2014) ALL FWLR (PT. 731) 1477 at 1495 PARA C-D was cited in aid.

The 1st Respondent further submits that the rule in KOJO v BONSIE could not be applied when the Appellants were unable to establish title which seems to be the anchor of acts of numerous possessions; AWODI v AJAGBE (2015) 3 NWLR (PT. 1447) 578 SC was cited in aid.

The 1st Respondent cited the case of ADDAH v UBANDAWAKI (2015) ALL FWLR (PT. 775) 200 at 212 PARA B-C in submitting that the law remains that where a person relies on traditional history as his root of title, the onus is on him to plead the root of title and names and history of his ancestors. He should lead evidence to establish same without any missing link in a genealogical tree from the progenitor to a claimant.

In conclusion, Counsel submits that the Appellants’ appeal is totally lacking in merit and ought to be dismissed.

2ND & 3RD RESPONDENTS’ ARGUMENTS
It is the submission of the 2nd & 3rd Respondents that the Appellants’ root of title to the land in dispute is predicated upon traditional history and to successfully rely on traditional history as root of title to land in dispute, the Appellants must plead and prove who founded the land; how the land was founded; and particulars of the intervening owners through whom they claim, down to them; EWO v ANI (2004) VOL 117 LRCN PG 3608 RATIO 7, 9, 12 & 13; OPOTO v ANAUN (2015) VOL 32 WRN PG 78 RATIO 2; ANYAFULU v MEKA (2014) VOL 16 WRN PG 53 RATIO 1 were cited in aid.

It is the contention of the 2nd & 3rd Respondents that it was insufficient for the Appellants to simply or casually state that the land in dispute was founded by OVENVEN, JEMIGIN, IDUH and OTHERS. They ought to have pleaded the names of these ‘‘others’’, for as at now both the lower Court and this Court do not know the number of persons who did. Appellants woefully failed to satisfy the three requirements for anyone relying on traditional history. Their claims were therefore rightly dismissed by the trial Court.

It is the submission of the 2nd & 3rd Respondents that consequent upon the acquisition and conversion of the land allegedly founded by the Appellants’ ancestors into a forest reserve by the Colonial Administrators, the ownership of the land allegedly founded by the Appellants’ ancestors became extinguished.

That the release of additional 172 acres from the forest reserve for farming and other uses by the Colonial Administrators vide Exhibits K, L and P created a fresh/new title over the land which was no longer dependent on traditional history but on the documentary Exhibits.

Counsel submits that the root of title to the land now in dispute is Exhibits K, L, M and P and is no longer traditional history. Thus, proof of same will still not entitle them to ownership of the land in dispute, without their proving satisfactorily before the Court that Exhibits K, L, M and P created ownership in their favour over the land in dispute.

That the Appellants have also conceded in their Brief of Argument that Exhibits K, L and P only confer on the residents of the 172 acres de-reserved areas the right to farm and use only.

Counsel further submits that a perusal of these Colonial instruments, Exhibits K, L and P also clearly reveal that the right conferred on the residents within the de-reserved areas, including the Otonyatsere enclave, did not include ownership of the lands.

It is the submission of the 2nd and 3rd Respondents that the 1996 Delta State Government Gazette, Exhibit M, by which additional 200 acres were added to 172 acres released by the Colonial Government, did not also create any ownership right in favour of the residents of the de-reserved area. It merely enlarged the existing de-reserved areas with additional 200 acres without creating any right whatsoever in favour of the residents.

Counsel submits that the traditional history pleaded and led in evidence in this case by the Appellants has nothing to do with the 172 acres of land released from the forest reserve by the Colonial Administrators for farming and other uses by virtue of Exhibits K, L and P.

Furthermore, the additional 200 acres of land released by the Delta State Government in 1996 by virtue of Exhibit M also has nothing to do with the traditional history pleaded and led in evidence by the Appellants.

Finally, Counsel submits that there is a total disconnect between the traditional history of the Appellants and the land in dispute, the effect of which is that the Appellants failed to prove their ownership of the land in dispute and the Learned Trial Judge was right in dismissing their claims.

On issue 2, it is the submission of the 2nd and 3rd Respondents that the Appellants cannot approbate and reprobate over the application of the rule in KOJO v BONSIE to this case; ABUSOMWAN v MERCANTILE BANK LTD 1987 NWLR PT 69, PG 196 at 211; JADESIMI V OKOTIE-EBOH 1989 NWLR PT 113, PG 113 at 125; AGIDIGBI v AGIDIGBI 1992 2 NWLR PT 220 PG 98 at 120 were cited in aid.

That the invocation of the rule in KOJO v BONSIE by the learned trial Judge in the determination of this case was an over-indulgence to the Appellants because their traditional history did not merit applying the principle in this case.

Counsel submits that the rule in KOJO v BONSIE is only applicable when the traditional histories proffered by the parties in a case are cogent and plausible but in conflict whereas in this case, the traditional history presented by the Appellants is incomplete and the rule is inapplicable; OBIORA v DURU (1994) 8 NWLR PT 365 PG 631 at 650 was cited in aid.

Counsel further submits that the traditional history relied upon by the Appellants as their root of title to the land in dispute was inconclusive and not plausible to warrant the invocation of the rule in the case of KOJO v BONSIE because the said traditional history is unreliable and incredible.

It is the submission of the 2nd and 3rd Respondents that having regard to the unreliable and incredible traditional history pleaded and led in evidence by the Appellants, it was unnecessary for the learned trial Judge to have invoked the rule in the case of KOJO v BONSIE in the determination of the case before it as the Appellants’ traditional history was not deserving of such elevation.

Counsel submits that the learned trial Judge ought to have dismissed the Appellants’ case without first invoking the rule in the case of KOJO v BONSIE because where the root of title pleaded by the claimant in a land matter is not proved, it will be totally unnecessary to consider acts of possession or ownership because such acts are no longer acts of possession or ownership but acts of trespass; USUNG v NYONG (2010) ALL FWLR PT. 523, PG 1967; WACHUKWU v OWUNWANNE (2011) VOL 197 LRCN PG 33 RATIO 11; OWHONDA v EKPECHI (2003) VOL 49 WRN PG 1 RATIO 1 were cited in aid.

Counsel further submits that where a party’s root of title to a land in dispute is not proved as in this case, it will be wrong to rely on acts of possession or ownership in determining title to the land; LAWAL v OLUFOWOBI VOL 43 LRCN PG 2084 RATIO 1; AKINTOLA v BALOGUN (2000) 1 NWLR PT 642 PG 532 RATIO 14 were cited in aid.

Citing the cases of APOSTLE PETER EKWEOZOR & ORS v THE REGISTERED TRUSTEES OF SAVIOURS APOSTOLIC CHURCH OF NIGERIA (2014) LPELR-23572 (CA); IDUNDUN v OKUMAGBA (1976) 9-10 SC, 140, Counsel submits that this matter being a declaratory one, the Appellants cannot rely on the alleged weaknesses in the Respondents’ case in urging this Court to grant them title to the land in dispute.

That the 2nd and 3rd Respondents not having filed any Counter-claim in this case have no duty to prove their entitlement to the land in dispute.

Counsel further submits that the Appellants having failed to properly prove their root of title and link it to the land in dispute, their claims were rightly dismissed by the learned trial Judge regardless of whether or not the 2nd and 3rd Respondents’ traditional history was cogent.

That the root of title to the land in dispute is not based on traditional history as wrongly canvassed by the Appellants but on Exhibits K, L, M and P and regardless of whether or not the 2nd and 3rd Respondents proved the traditional history pleaded by them satisfactorily, the Appellants will not be entitled to the judgment of the Court if they cannot prove that Exhibits K, L, M and P (and not their traditional history) confer ownership of the land in dispute on them.

Referencing and citing paragraph 73 of the record of proceedings at page 395, Counsel submits that the Appellants did not and have not challenged the content of Exhibit N in any Court of law and particularly in these proceedings, which therefore remain inviolable up till this day and the learned trial Judge was therefore right, contrary to the arguments of the Appellants, to have made use of as well as attached much weight to the said Exhibit N in the manner she did in her judgment.

Counsel further submits that the invocation of the rule in KOJO v BONSIE by the learned trial Judge in this case was done out of abundance of caution and did not occasion any miscarriage of justice since the parties also join issues on possession of the land in dispute.

Finally, Counsel submits that the learned trial Judge considered the evidence of the parties regarding the various acts of possession on the land in dispute in determining whether the Appellants are entitled to the declaration sought by them and it has not been demonstrated by the Appellants in this appeal that the learned trial Judge was wrong in relying on the documents tendered by them as exhibits in the proceedings to demonstrate the weakness in their case.

The contention that their exhibits were not fully appraised/evaluated by the trial Court is misconceived as the learned trial Judge properly considered all the Exhibits tendered by the parties in this case.

On the contrary, even if not properly evaluated, same will not invalidate the judgment of the Court rather the Court of Appeal will do that which the trial Court failed to do and decide whether the judgment of the Court still stands notwithstanding the improper appraisal by the trial Court; OGBONNA v A.G. IMO STATE (1992) NWLR PT. 220 PG 647 at 676-677; IMONIKHE v A.G. BENDEL STATE (1992) 6 NWLR PT. 248 PG 396 at 409-410; OGUNLEYE v ONI (1990) 2 NWLR PT 135 PG 745 RATIO 23; OSHO v APE (1998) VOL 60 LRCN PG 4077 at 4105 were cited in aid.

It is further submitted that the learned trial Judge was right to have invoked the Rule in KOJO v BONSIE in favour of the Respondents as the acts of possession relied upon by the Appellants, some of which occurred after the institution of this case, are not cogent enough to warrant the invocation of the rule in KOJO v BONSIE in their favour.

In conclusion, Counsel urged the Court to resolve all the above formulated issues in favour of the Respondents and dismiss this appeal.

APPELLANTS’ REPLY
Citing WAGBATSOMA v FRN (2018) LPELR-43722 (SC) the Appellants submitted that the preliminary objection of the 1st Respondent’s Counsel is misconceived as the complaints in grounds 2 and 3 of the Appellants as set out in the Notice and Grounds of Appeal touch on the ratio and not obiter of the judgment.

Counsel submits that the ratio decidendi of a judgment is the reason for the decision. It is the principle of law upon which a particular is decided and it serves as judicial precedent in subsequent cases; ODUGBO v ABU (2001) LPELR-2238 (SC) P. 66 was cited in aid.

Counsel further submits that both grounds complained of are ratio decidendi and validly qualify as basis for grounds of appeal. That the 1st Respondent Counsel is wrong to have labelled them as obiter dicta without first referring to the claim of the Appellants at the lower Court.

Counsel urged the Court to discountenance the preliminary objection of the 1st Respondent’s Counsel as same is misconceived in law.

In reply to the 1st Respondent’s issue 1, the Appellants submit that the standard proof in land matter as well as in all civil cases is not proof beyond reasonable doubt as erroneously anticipated by the 1st Respondent’s Counsel when he submitted that CW3 ‘‘created more doubts’’ in his evidence.

Citing the case of ALHAJI SARATU ADELEKE & ORS v SANUSI IYANDA & ORS (2001) LPELR-11 (SC) Counsel submits that what the law requires in a civil action is not the absence of doubt but the existence of a prima facie case, a stronger case than that of the defendant.

Counsel further submitted that the authorities cited by the 1st Respondent’s Counsel that failure to prove root of title may result in dismissal and the authority as to what a party who relies on traditional history must prove are mere restatement of the law, and at best applicable to the 2nd and 3rd Respondents’ traditional evidence which fails the requirement of the law.

In reply to the 2nd and 3rd Respondents’ issue 1, the Appellants submit that assuming without conceding that title of Appellants ought not to be based on traditional history but on Exhibits K, L, M and P, Exhibits K, L, M and P are sufficient acts of possession and entitle the Appellants to a declaration of title to the land in dispute; AJIBOYE v ISHOLA (2006) LPELR -301 (SC) was cited in aid.

Appellants further submit that the colonial instruments admitting the Appellants to farm and use the land and the Delta State Gazette of 1996 which added to the existing Otonyatsere Enclave are laws in themselves and need no further proof; Section 122 of the Evidence Act 2011 was referred to.

It is the submission of the Appellants that there is evidence before the trial Court that since the Ukpe Sobo Forest Reserve was constituted and the Appellants were admitted to farm on the land in dispute, being owners met on the land by the colonial masters, the Appellants have built houses, rented land to tenants, erected signboards of Otonyatsere Community, built town hall named Otonyatsere Community, etc without hindrance or complaint from the 2nd and 3rd Respondents’ community.

In response to issue 2 of the 2nd and 3rd Respondents’ Counsel, the Appellants submit that the 2nd and 3rd Respondents’ Counsel misconceived Appellants’ Counsel Argument in the final address at the lower Court. That Appellants’ Counsel at the lower Court argued that the evidence of traditional history as put forward by the 2nd and 3rd Respondents was incomplete and should be discountenanced with a rider that ‘‘assuming without conceding that 2nd and 3rd Defendants traditional history is complete, it is further submitted that their evidence of tradition is in conflict with that of the Claimants” which brings in the application of KOJO II v BONSIE (1957) 1 WLR 1223.

Counsel further submits and maintains that the evidence of traditional history as put forward by the 2nd and 3rd Respondents is incomplete and ought to have been discountenanced by the lower Court and accept Appellants’ traditional history that met the requirement of the law.

DALA v AYODELE & ORS (2014) LPELR -24621 (CA) was cited in submitting that the entire 200 acres was reflected in the Survey Plan with its size, location and a number of other features and the failure to mention one particular feature e.g. Shell Petroleum Development Company Road within the 200 acres does not make Exhibit A defective or contradictory, especially in the absence of a counter-plan filed by the Respondents.

The Appellants submit that the authority of FATIMEHIN v LAWANI (2015) 6 WRN 21 cited by the Respondents to the effect that a defective survey plan and the case where the description of the land contradicts the plan will defeat a claim for declaration for land is grossly inapplicable and should be discountenanced.

In conclusion, the Appellants urged the Court to uphold the appeal and set aside the judgment of the lower Court.

RESOLUTION
I have considered the issues before this Court as distilled by the parties; the Appellants’ issues (being the aggrieved party) would be adopted for the determination of this appeal.
In resolving the appeal, issues 1, 2, 3, 4 and 5 would be taken together as a sole issue for determination.

ISSUE FOR DETERMINATION
Issues 1, 2, 3, 4 and 5
The apt question is whether or not the Appellants have proved title to land in dispute in the light of evidence of traditional history tendered by them in the proceedings?

See; APOSTLE PETER EKWEOZOR & ORS v THE REGISTERED TRUSTEES OF SAVIOURS (2014) LPELR-23572 (CA); where the Court held thus;
‘‘It is also trite that the claimant must establish one of the five ways of proving title to land as laid down in IDUNDUN v OKUMAGBA (1976) 9-10 S.C, 140 and a plethora of authorities. Those five accepted ways are: a) By traditional evidence b) By production of documents of title; c) By the exercise of numerous and positive acts of ownership over a sufficient length of time to warrant the inference that the person is the true owner; d) By act of long possession and enjoyment of the land; and e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.’’
per BOLAJI-YUSUFF, JCA (PP. 53–54, PARAS D–B)
The law is therefore settled that where a claimant establishes one of the five ways of proving title to land, it is sufficient proof of ownership of the land; See; BALOGUN v AKANJI (1988) 1 NWLR (PT. 70) PG 301.

In the instant case, the Appellants’ root of title to the land in dispute is predicated upon traditional history which is one of the five ways of proving ownership of land in Nigeria and to successfully rely on traditional history as root of title to a land in dispute, the Appellants must plead and prove who founded the land; how the land was founded; and particulars of the intervening owners through whom they claim, down to them;
See; EWO v ANI (2004) VOL 117 LRCN PG 3608 RATIO 7, 9, 12 & 13; OPOTO v ANAUN (2015) VOL 32 WRN PG 78 RATIO 2; ANYAFULU v MEKA (2014) VOL 16 WRN PG 53 RATIO 1; HYACINTH ANYANWU v ROBERT ACHILIKE MBARA & ANOR (1992) LPELR -516 (SC).
Therefore, it was insufficient for the Appellants to simply or casually state that the land in dispute was founded by OVENVEN, JEMIGIN, IDUH and OTHERS. They ought to have pleaded the names of these ‘‘others’’, for as at now, both the lower Court and this Court do not know the number of persons who allegedly founded the land in dispute, going by the traditional history put forth by the Appellants.
Thus, the Appellants failed to satisfy the three requirements for anyone relying on traditional history.
However, it is settled that once a claimant fails to prove the foundation of his title to land by traditional history as pleaded, he cannot turn around to rely on acts of ownership and possession to prove his title to the land;
See; OYADARE v KEJI(2005) 7 NWLR (PT. 925) 571 at 584-585 PARA G-H; where the Court held thus;
‘‘It is settled by a chain of authorities that where the pleaded title to land has not been proved as in this case, it will be unnecessary to consider acts of ownership and possession which acts are no longer acts of possession but acts of trespass.’’
per KUTIJI, JSC (PP. 11-12, PARAS. F-A)
See also; AWODI v AJAGBE (2015) 3 NWLR (PT. 1447) 578 SC and STODIE VENTURES LTD v ALAMIEYESEIGHA (2016) 4 NWLR (PT. 1502) 271 at 288 PARA F-G.

Therefore, it was inappropriate for the learned trial Judge to have invoked the rule in the case of KOJO v BONSIE in the determination of the case because where the root of title pleaded by the claimant in a land matter is not proved, it will be totally unnecessary to consider acts of possession or ownership because such acts are no longer acts of possession or ownership but acts of trespass; See; USUNG v NYONG (2010) ALL FWLR PT. 523, PG 1967; WACHUKWU v OWUNWANNE (2011) VOL 197 LRCN PG 33 RATIO 11; OWHONDA v EKPECHI (2003) VOL 49 WRN PG 1 RATIO 1.
The rule in KOJO v BONSIE is only applicable when the traditional histories proffered by the parties in a case are cogent and plausible but in conflict whereas in this case, the traditional history presented by the Appellants is incomplete and the rule is inapplicable; See; OBIORA v DURU (1994) 8 NWLR PT 365 PG 631 at 650.
The rule in KOJO v BONSIE could not be applied when the Appellants were unable to establish title which seems to be the anchor of acts of numerous possessions; See; AWODI v AJAGBE (2015) 3 NWLR (PT. 1447) 578 SC; where the Court held thus;
‘‘In a claim for title to land based on traditional history, the plaintiff has to plead and prove each of the following;
(1) The person who founded the land and exercised acts of possession. (2) How the land was found, and (3) The persons on whom the title to the land devolved from its founder to the plaintiff. The pleading of the devolution as well as the evidence in support must be reliable and credible or plausible otherwise the claim for title will fail. The plaintiff must rely on his pleading, he cannot plead traditional history and abandon his pleading to rely on acts of ownership over a long period of time.’’
per NGWUTA, JSC (P. 48, PARAS. B – F)

With respect to the legal authorities cited above, it was not necessary for the Appellants to have tendered Exhibits A, B, C, D, E, G, H, J1-J4, K, L and M to show acts of ownership and possession since they were unable to establish title based on traditional history as pleaded.

Moreover, all these exhibits mentioned above do not contain any fact that suggests that the Appellants are the owners of the land in dispute.

From the record before this Court, the land now in dispute in this case was not the land founded by OVENVEN, JEMIGIN, IDUH and OTHERS because that land together with other lands belonging to other communities were acquired by the Colonial Administrators for a forest reserve in 1927. It is the 172 acres released from the forest reserve by the Colonial Administrators coupled with the additional 200 acres released by the Delta State Government in 1996 vide Exhibits K, L, M and P (which is the 1952 ordinance) that are now in dispute in this case.

Therefore, consequent upon the acquisition and conversion of the land allegedly founded by the Appellants’ ancestors into a forest reserve by the Colonial Administrators, the ownership of the land allegedly founded by the Appellants’ ancestors became extinguished. See; PAN–AFRICAN UNIVERSITY v SAIB RESOURCES LIMITED (2018) LPELR -46995 (CA); where the Court held thus;
‘‘The effect and/or consequences of acquisition of land was considered by this Court in SOBANDE v IGBOEKWE (2016) LPELR-40321 (CA) PG. 24-25, PARAS. E-B where the Court held that the effect of acquisition is to extinguish the previously existing interest in land and that upon release of previously acquired land by excision as in this case, it does not relate back to the original root of title but rather a new root of title is founded on the grant made by the Government…’’
Per ABUBAKAR, JCA (PP. 36-39, PARAS. C-D)
The release of 172 acres from the forest reserve for farming and other uses by the Colonial Administrators vide Exhibits K, L and P created a fresh/new title over the land which was no longer dependent on traditional history but on the documentary Exhibits. The root of title to the land now in dispute is Exhibits K, L, M and P and no longer traditional history. Thus, even if the Appellants successfully proved their traditional history before the lower Court as canvassed in their Brief of Argument, it will still not entitle them to ownership of the land in dispute, without their proving satisfactorily before the Court that Exhibits K, L, M and P created ownership in their favour over the land in dispute.
In SOBANDE v IGBOEKWE (Supra) the Court held that when a portion of the land acquired is excised and returned, the ownership of the land vests on the person/persons in whose favour the excision was made. Thus, a new root of title is created by virtue of the grant and no issue of reversionary interest arises as what is created is a new root of title. SEE;ELEMORO & ANOR V ABIODUN (2014) LPELR-23195 (CA);GBADAMOSI & ORS V AKINLOYE & ORS 2013 LPELR-20937(SC);YUSUF V OYETUNDE & ORS(1998) 12 NWLR (PT 579) 485 AT 493; ALHAJI AKIBU ALARAPE ADAMS BAKARE V MRS FLORENCE FOLASHADE SUSAN (2018) LPELR -45339 (CA) In FRUIT TROPIC INDUSTRIES LTD v MR YAKUBU AMODU & ORS (2020) LPELR-51675 (CA); The Court PER IKYEGH JCA, held following AKINBOYE & ANOR V ADEKO (2011) 6 NWLR (PT1244) 415 AT 442 thus;
“Once there is valid compulsory acquisition of land, the title of the former owner becomes extinguished by the reason of the acquisition.”

From the record before this Court, the Appellants have also conceded in their Brief of Argument that Exhibits K, L and P only confer on the residents of the 172 acres de-reserved areas the right to farm and use only.

Moreover, a perusal of these Colonial instruments, Exhibits K, L and P also clearly reveal that the right conferred on the residents within the de-reserved areas, including the Otonyatsere enclave, did not include ownership of the lands.

The 1996 Delta State Government Gazette, Exhibit M, by which additional 200 acres were added to 172 acres released by the Colonial Government, did not also create any ownership right in favour of the residents of the de-reserved area. It merely enlarged the existing de-reserved areas with additional 200 acres without creating any right whatsoever in favour of the residents.
Thus, the traditional history pleaded and led in evidence in this case by the Appellants has nothing to do with the 172 acres of land released from the forest reserve by the Colonial Administrators for farming and other uses by virtue of Exhibits K, L and P.
Furthermore, the additional 200 acres of land released by the Delta State Government in 1996 by virtue of Exhibit M also has nothing to do with the traditional history pleaded and led in evidence by the Appellants. SEE; DIKE & ORS V NZEKA II & ORS (1996) LPELR- 9455 (SC); SOGUNRO & ORS V YEKU & ORS (2017) LPELR-41905 (SC).
The root of title to the land in dispute is not based on traditional history as wrongly canvassed by the Appellants but on Exhibits K, L, M and P and regardless of whether or not the 2nd and 3rd Respondents proved the traditional history pleaded by them satisfactorily, the Appellants will not be entitled to the judgment of the Court if they cannot prove that Exhibits K, L, M and P (and not their traditional history) confer ownership of the land in dispute on them.
Therefore, there is a total disconnect between the traditional history of the Appellants and the land in dispute, the effect of which is that the Appellants failed to prove their ownership of the land in dispute and the Learned Trial Judge was right in dismissing their claims. SEE; OLUWA & ORS V SUNDAY OBAYOMI & ORS (2017) LPELR-43261 (CA); DAKIPRI ODI & ORS V CHIEF HARRISON IYALA & ORS (2004) LPELR -2213 (SC); TYOGIBE AKULAKU & ORS V IKYUME YONGO (2002) LPELR- 392(SC).

I am in agreement with the evaluation of the learned trial Court on the Exhibits and it cannot be faulted. Furthermore, even though there is no Counter Survey, the features of the land must be glaring and it defeats the purpose of the survey. If it does not, and in this case, it does not show such. The purpose of a Survey Plan in a land dispute is to show graphically the morphology of an area in dispute, its extent and size.
See: OYEFESO V. COKER (1999) 1 NWLR (PT. 588) 654 CA (Supra)

I resolve this issue (ISSUES 1-5) against the Appellants.

In the light of holding that the Appellants have failed to prove that Exhibits K, L, M and P (and not their traditional history) confer ownership of the land in dispute on them, this issue has been resolved in favour of the Respondents.
The appeal lacks merit, and fails the appeal is dismissed.

The judgment of the High Court of Justice Delta State, Sapele Judicial Division per Hon. Justice R. D Harriman (Mrs) delivered on the 12th day of May, 2017 is affirmed.
Cost of N200,000 is awarded to each set of Respondents.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had the privilege of reading in draft, the leading judgment of my learned brother, ABIMBOLA O. OBASEKI-ADEJUMO, JCA, in this appeal. I am in agreement with the reasoning and conclusion therein that there is no merit in the appeal. I too dismiss the appeal.

JOSEPH EYO EKANEM, J.C.A.: I had the privilege of reading before now, the leading judgment of my learned brother Obaseki-Adejumo, JCA, which has just been delivered. I agree with the reasoning and conclusion therein that the appeal lacks merit. I therefore join my learned brother in dismissing same.